How to provide electronic evidence in court

New technologies have drastically changed the forms of interaction and communication between people. A fact that is transferred to all areas of society and of course, also to the judiciary. For some years now, it has been common for the parties to a judicial proceeding to provide as evidence emails, conversations WhatsApp or messages on social networks. A recent example of this has occurred in the trial that is taking place between Johnny Depp and Amber Heard in which numerous and shocking emails and mobile messages sent by Depp to his friends referring to the couple of the.

Like any other evidence, its admissibility will depend on whether it meets the requirements established by law, such as relevance, usefulness and legality.

However, the particular problem they pose is that, in many cases, as explained by Laura Fra, deputy dean of the León Bar Association and partner in the RBH Global digital law area, what is being provided is documentary evidence. “A pdf that is a transcript of a conversation from WhatsApp or an email that may or may not have been manipulated, and that is where the conflict lies, and the cause of its challenge and possible inadmissibility”, warns Fra.

And the fact is that, as Felipe Herrera, a lawyer specializing in technology and a partner at the Terms and Conditions office, points out, “a mere screenshot of some email messages is not the same thing. WhatsAppthat that same conversation protocolized by a notary or provided together with an expert report that certifies the absence of manipulation”.

More than a screenshot or a pdf

In any case, for an email to have the value of digital evidence, it must be submitted on digital media (CD, DVD, USB) with its paper transcript. In that digital file, Fra comments, the source code will appear with all the information of the shipment, such as the IP address from which it was sent, the recipients, the time it was produced, if it was made with a digital signature, or even , the geographical position of the place where the computer was located, among other data. “In this way, the email will be considered a private document and will be valued together with the rest of the evidence provided,” highlights the lawyer. This consideration means that despite the fact that the emails are in digital format “they can also be challenged by the other party if they reject their authenticity”, adds Fra.

The Supreme Court has ruled on this point in a ruling of October 2020, in which it recognized that “the paper medium has been superseded by new technologies” and that the electronic document acquires by itself the possibility of being considered a private document. , official or public, according to the technical elements that are incorporated for its use and materialization. “Its authenticity is so strong that it exceeds the reality that can be seen in the written document,” concluded the High Court.

Lawful access to evidence

For her part, Maitane Valdecantos, a partner at Audens, affirms that in order to present evidence of this type and not reject it, it is necessary to carry out “the so-called admissibility test”. This examination, as the lawyer explains, implies that a series of conditions are met. In the first place, access to the evidence must be lawful, that is, all fundamental rights such as privacy or secrecy of communications have been respected in order to obtain it.

In this sense, Herrera points out that “there is no problem with the conversations in which we are part or with the material that is in the public domain, such as that published on social networks, but the recordings of conversations in which we do not participate are more delicate. intervenes.” This does not mean that in these cases access to evidence is always illegal, since, as the lawyer specifies, each case must be analyzed individually, although it does mean that “sometimes it is convenient that the electronic conversations be provided by the witness or the third party.” person who was part of them”, he clarifies.

What’s more, as Fra warns, if the presentation of electronic evidence entails an intrusion into the privacy of a third party, “not only will the evidence be challenged, but we risk having to face criminal liability.”

Integrity and authenticity

Secondly, the integrity of the evidence must be assessed, which means that a correct chain of custody has been followed that guarantees that it has not been modified or altered. And, finally, its authenticity, that it has not been manipulated. Regarding this last point, given the facility to modify the messages of WhatsApp, social networks and emails, Valdecantos insists on the possibility of guaranteeing their authenticity, accompanying them with an expert report or through data cloning. Data cloning is a process that consists of making a bit-by-bit copy or “mirror copy” of the original information in such a way that an unaltered physical copy of the content of the electronic device is obtained, so that it remains in custody. of the Court.

In any case, Valdecantos clarifies that electronic evidence may be admitted, even if it lacks an expert report, if other evidence is provided to endorse and accredit it, such as cross-examination, testimonial evidence or its consistency with other evidence. And, “ultimately, it will be the judge who will assess the evidence in accordance with the rules of healthy criticism, with a system of motivated free assessment,” adds the lawyer.

Faced with these difficulties, Fra concludes that the legal profession “will have to assess whether or not it is necessary to provide digital evidence, taking into account the relevance to the case of what they want to prove and whether they can do it in another way.

In fact, the Supreme Court in a 2015 ruling, specified regarding some screenshots provided by the accused that showed messages exchanged with the victim on the Tuenti social network, that precisely, who must verify its authenticity is the party that intends to take advantage of the suitability evidence of those conversations carried out by electronic means. To which he added that, in such a case, the practice of an expert test was essential to identify the true origin of that communication, the identity of the interlocutors and, finally, the integrity of its content.